The Road Not Taken: Separation of Powers, Interim Interdicts, Rationality Review and E-Tolling‘

It is necessary from the very nature of things that power arrests power.'1 I Introduction The place of the doctrine of separation of powers in South African constitutional jurisprudence, in particular, and in remains a hotly contested topic. Its application and relevance in particular cases is often unclear. The issue most recently arose in National Treasury and Others v Opposition to Urban Tolling Alliance and Others (OUTA).2 The case involved the legality of a controversial government decision to fund an upgrade to freeways in Gauteng through the collection of tolls from road-users. The Respondents sought, and were granted, an interim interdict from the North Gauteng High Court. The interdict prohibited the levying and collection of tolls pending further proceedings for final relief as to whether the government possessed the power to declare certain roads as toll roads.3 Before the proceedings for final relief could be heard in the High Court, the National Treasury and the South African National Roads Agency (SANRAL) instead sought leave to appeal to the Constitutional Court against the interim relief granted by the High Court. The Constitutional Court took the unusual step